Clause 51 - Identified potential victims etc: disqualification from protection

Nationality and Borders Bill – in a Public Bill Committee at 10:00 am on 2nd November 2021.

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Photo of Holly Lynch Holly Lynch Shadow Minister (Home Office) 10:00 am, 2nd November 2021

I beg to move amendment 164, in clause 51, page 44, line 31, at end insert—

“was aged 18 or over at the time of the circumstances which gave rise to the positive reasonable grounds decision and—”

This amendment would exclude children from the disqualification from protection measures outlined in clause 51.

Photo of Roger Gale Roger Gale Conservative, North Thanet

I will take the stand part debate with this, and would like to explain why. Where there are relatively short clauses with only one amendment to them, experience tells me that it is sometimes better to take the stand part debate with the amendment, because discussions that might be out of order in debate on the amendment can be in order if clause stand part is taken with the amendment. In other words, it allows for a greater freedom of discussion.

Photo of Holly Lynch Holly Lynch Shadow Minister (Home Office)

Thank you for that advice, Sir Roger.

Like a number of our other amendments, amendment 164 seeks to ensure that no child victim of trafficking or modern slavery is denied protection. Clause 51 introduces the following reasons why someone would be disqualified from protection: they are a threat to public order, or they have claimed to be a victim of modern slavery in bad faith. The Independent Anti-Slavery Commissioner, Dame Sara Thornton, says in her letter to the Home Secretary on the Bill:

“I have grave concerns about this clause because it casts a wide net, with the potential to prevent a considerable number of potential victims of modern slavery from being able to access the recovery and reflection period granted through the NRM. Without such support prosecution witnesses will be unable to provide witness evidence and this will severely limit our ability to convict perpetrators and dismantle organised crime groups.”

She says these changes will make it harder to convict perpetrators and go after organised crime groups. I doubt any of us came into politics to pass laws that work to the advantage of criminals, so why is the clause included in the Bill?

The Children’s Society has emphasised concerns regarding the impact on children who are victims of child criminal exploitation. In 2020, of the 47% of referrals to the NRM that were for children, 51% were for criminal exploitation. According to the National Crime Agency, referrals to the NRM for British children have grown due to an increase in child criminal exploitation, particularly by groups using the county lines model. The average custodial sentence length given to children has increased by more than seven months over the last 10 years, from 11.3 to 18.6 months in 2020.

A case study supplied by the Children’s Society following a serious case review by Waltham Forest Safeguarding Children Board is one of the most depressing of the many case studies we have been sent during our preparations for this Committee. Child C was a vulnerable child who lived in Nottingham. He was regularly excluded from school and was eventually home-schooled. His family noted that he regularly ran away from home. In January 2018, his mother said he was threatened by an older youth, who said that Child C had money for them. The incident was reported to Nottinghamshire police, but the police have no record of it. Also in January, Child C was arrested by police in possession of an air gun, a knife and cannabis. He later informed the youth offending team that an older boy had given him these. The youth offending team worked with Child C on a programme designed to highlight the dangers of carrying weapons. The incident was reported to the multi-agency safeguarding hub, but no further action was taken because of the youth offending team’s involvement.

Child C moved to Waltham Forest in April 2018. In October 2018, he was arrested in Bournemouth in what is known as a cuckoo flat—a person’s home that criminals take over and use to facilitate exploitation. There was significant evidence of drug use and sales in the flat. Child C was found to be in personal possession of 39 wraps of crack cocaine, and was arrested for possession of class A with intent to supply. That was a pivotal moment in providing support to the child. For the first time, the authorities in Waltham Forest had been presented with completely unequivocal evidence that Child C was being criminally exploited. From that point, he had multi-agency involvement and a further conviction for carrying an offensive weapon. The case study ends with Child C being murdered in January 2019.

That is the operating model for county lines gangs. We know that criminally exploited children are driving up referrals to the NRM, meaning that children will be coerced into committing crimes as part of their exploitation. That is explicit in section 45 of the Modern Slavery Act 2015. It is unclear what, if any, assessment the Government have made of how children will be affected by changes in clause 51 and the risk to them of remaining in exploitative situations. Disqualifying child victims from protection is incompatible with the duties on local authorities and other public bodies under section 11 of the Children Act 2004 to safeguard and promote the welfare of children. I urge the Minister to adopt amendment 164 and stand with child victims of modern slavery; it will allow him to go after the criminal gangs who will welcome this clause.

Clause 51 is incompatible with the duties on local authorities and the Home Office to safeguard and promote the welfare of children. It fails to take into account that children are at greater risk of exploitation owing to their developing capacity and, under the UN convention on the rights of the child, should never be denied protection. The fact that the Government have decided to ignore those fundamental principles to protect the most vulnerable children is simply shocking. The Government’s equality impact assessment promises to mitigate the adverse impact on vulnerable people but fails to identify any exemptions or specialist support for children in part 4 of the Bill.

Other shocking findings include the more than twelvefold increase in the number of children waiting longer than a year for an initial decision; the number has gone from 563 children in 2010 to 6,887 in 2020. Additionally, more than 250 people have been waiting for five years or more for an initial decision on their case, of whom 55 are children. We believe that clause 51 is incompatible with the protections in section 45 of the Modern Slavery Act. The exclusion of victims of all nationalities and ages with convictions for offences listed in schedule 4 of the 2015 Act is too broad, considering that exclusion from support is different from protection from criminal convictions under section 45, for which the list in schedule 4 was created.

Subsection (3) of clause 51 stipulates that an individual is considered a threat to public order if

“the person has been convicted of any other offence listed in Schedule 4 to the Modern Slavery Act 2015” or a corresponding offence under the law of any other country. That incorporates criminality not just committed in the UK but potentially older and minor offences committed in the person’s country of origin. As the Human Trafficking Foundation has highlighted, many victims from eastern Europe are targeted precisely because they have had minor convictions; prison leavers are sought out precisely for that reason.

Operation Fort, which involved dismantling the UK’s biggest modern slavery network, demonstrated that traffickers

“targeted the most desperate from their homeland, including the homeless, ex-prisoners and alcoholics. ”

The Independent Anti-Slavery Commissioner has explained that she has “grave concerns” about clause 51 because it

“casts a wide net, with the potential to prevent a considerable number of potential victims of modern slavery from being able to access the recovery and reflection period granted through the NRM. Without such support prosecution witnesses will be unable to provide witness evidence and this will severely limit our ability to convict perpetrators and dismantle organised groups.”

She also includes a second case study—Operation Elibera:

“In 2018 a Romanian trafficker was convicted of offences under the Modern Slavery Act 2015, having trafficked at least 15 people from Romania and forcing them to work in the construction industry without pay whilst being threatened with violence. He received a seven year sentence, and was also given a Slavery and Trafficking Prevention Order. Each victim received compensation of approximately £1,000. Of the 15 potential victims identified, two provided statements to support the police investigation. One of those witnesses, whose evidence was significant in securing the conviction, had three previous convictions in Romania all of which attracted sentences in excess of 12 months.”

Dame Sarah goes on to say:

“We know that traffickers already have a modus operandi of recruiting individuals with offending history, including those who have recently left prison, who are less likely to engage with authorities and seek support. Should this cohort be prevented from accessing support through the NRM, they are likely to be increasingly targeted by traffickers.”

The Government repeatedly talk about breaking the business model of people smugglers, but the clause will undermine our ability to do just that. For example, Hope for Justice says that 29% of individuals in its current case load have committed offences that would meet the criteria for exemption under public order grounds. There are many other examples that demonstrate that; the most recent is the judgment of VCL and AN in February this year, in which the European Court of Human Rights found that the United Kingdom had violated articles of the European convention on human rights. That case involved two victims, both Vietnamese minors, who were found by police working in a cannabis farm. On the advice of their legal representatives, they pleaded guilty and were charged with drug-related offences, despite having been trafficked to the UK as children. That case shows that identification is key to protecting victims from exploitation, particularly children who have diminished capacity and are therefore at greater risk.

Of course we agree that the public should be protected from serious criminals who pose a threat to our society, but there is simply no data to support the Government’s claims in relation to clause 51. Research undertaken by the National Crime Agency suggests that, as we have discussed, there are between 6,000 and 8,000 modern slavery offenders in the UK. However, in the England and Wales last year, there were only 91 prosecutions and 13 convictions where modern slavery offences were the principal offence.

The clause will drive more people underground and make it significantly harder for the police and the authorities to investigate the perpetrators of human trafficking. It also sends a clear message to those perpetrators that they are free to exploit someone with a criminal record, knowing that they will be exempt from protection. We agree with the Independent Anti-Slavery Commissioner that securing prosecutions against those who commit those heinous crimes will become harder if the clause stands part, which we do not believe it should.

Photo of Stuart McDonald Stuart McDonald Shadow SNP Spokesperson (Home Affairs) 10:15 am, 2nd November 2021

I rise to support the amendment and to make the case for the removal of the clause. The amendment is absolutely right, and excluding any survivors, especially children, from the scope of the clause will alleviate its worst impacts. The whole clause is bad.

Unlike with previous measures, it is absolutely apparent what the Government are driving at this time, but there is already a perfectly good procedure for dealing with this issue. Guidance implementing the European convention on action against trafficking says that where there is an improper claim of victim status, or there are public order grounds for doing so, the state can make a negative conclusive grounds decision and decide not to observe the reflection and recovery period. That remedy is available right now. How many times has that remedy been used in the United Kingdom? I hope the Minister can answer that, now or later.

The Home Office wants to go much further and help itself to a different remedy. Despite Home Office claims, nothing in the convention justifies simply failing altogether to make a conclusive grounds decision. On the contrary, article 10 of the convention requires states to identify victims, and that position is recognised in the Home Office’s guidance. That is why the Independent Anti-Slavery Commissioner has expressed, as we have heard, serious concern about the compatibility of the clause with ECAT—they just are not compatible. The measures will not only breach international obligations, but they will be counterproductive in the fight against trafficking and slavery.

We have already heard one or two of the case studies provided by the commissioner. I will add one more, from the Anti Trafficking and Labour Exploitation Unit. It relates to the case of Z, who was trafficked to the UK after being used for prostitution in Europe for a number of years. Her child had been removed from her by the traffickers. She managed to escape from the traffickers in the UK, and used a false document that she grabbed during her escape, as she wanted to go back to Europe to find her child. She was arrested and prosecuted for a document offence and given a sentence of more than 12 months after being advised to plead guilty. Trafficking was never explored as part of the criminal process. Later, Z was referred to the NRM and claimed asylum. The Home Office agreed that she was a victim of trafficking, and she was then given leave to remain on that basis. It also agreed not to pursue deportation because of her trafficked status.

After Z was referred to the NRM, a decision still had to be made about whether she was a victim of trafficking. The Home Office ultimately decided to grant her leave to remain and halt deportation, having been required to make that decision. Had the clause been in force, Z would never have been identified as a victim of trafficking; she would have been deported. That would have been absolutely dreadful for Z, who would have lost out on support and help that she clearly needs for her recovery, but it is also dreadful for many others, because it will clearly make it infinitely more difficult to track down Z’s traffickers. They will not be apprehended, and other people will fall victim to the very same crime, as is shown by the other case studies provided by the Anti Trafficking and Labour Exploitation Unit, and by the commissioner in her letter to the Home Secretary.

In short, people who need support will be denied it, and the perpetrators of the crimes against them will not be caught and punished. As we have heard, the clause will simply encourage traffickers to target those who have criminal convictions and who are sentenced to more than two at once, and even compel them into criminal activity precisely so that the exclusions will apply to them if the trafficker threatens to disclose their crimes. We have heard from the commissioner that that is already the traffickers’ modus operandi—excuse me; my Latin is terrible. The reason is that traffickers know that the absence of support and removal from the country will make it easier for the trafficker and their colleagues to avoid justice. The clause is, in essence, a gift for people traffickers, and it totally undermines the work of the Modern Slavery Act 2015.

I will briefly mention some other problems. The commissioner has rightly expressed concern about the huge breadth of offences that would be caught by the provision, particularly as it includes sentences imposed outside the UK that might not reflect sentencing guidelines in the UK; that could mean that minor offences are brought within scope. Will the Minister confirm that trafficking victims who enter the UK in breach of clause 37 of the Bill would end up in prison, possibly for even three or four years, and would therefore be excluded from support? A huge proportion of survivors will be left with the threat of exclusion from support hanging over them, putting them in even more vulnerable position.

Why is the expression “bad faith” used in the clause, rather than the convention’s wording or the wording of the guidance that the Home Office has put in place, which relate to “improper purpose”? The use of a different form of words needs to be explained. Why is it that in some cases, suspicion of certain offences, rather than an actual conviction, is enough for exclusion? The key point is that if we do not identify victims, neither do we identify traffickers. In breach of the convention, the clause expressly provides for that, so it should be amended.

Photo of Craig Whittaker Craig Whittaker Assistant Whip, The Lord Commissioner of HM Treasury

Let me see whether I can answer some of those questions. The hon. Member for Halifax asked whether the clause is incompatible with the statutory safeguarding responsibilities. The answer to that question is no, it is not incompatible at all with the statutory safeguarding responsibilities. Section 45 of the Modern Slavery Act 2015 is a criminal defence, but clause 51 of the Bill is a very separate system. Section 45 is separate from the public order disqualification. A section 45 defence is not applicable to the serious crimes set out in schedule 4 of the Bill. The Government will of course continue to work with local authorities to safeguard children and take their particular vulnerabilities into account on a case-by-case basis.

I will just highlight one or two points that piggyback on the back of what the Government are doing in this field. The hon. Member for Halifax mentioned county lines, and we have invested in specialist support for the under-25s and their families who are affected by county lines exploitation in London, the west midlands and Merseyside. We also fund a missing persons safe call service—a national, confidential helpline for young people, families and carers who are concerned about county lines exploitation—and the Home Office is funding the Children’s Society’s prevention programme, which works to tackle and prevent child criminal exploitation, child sexual abuse and exploitation, and modern-day slavery and human trafficking on a regional and national basis. There is also a public awareness campaign that started in September, which is called Look Closer. What I would say to the hon. Member for Halifax is that the public order grounds for disqualification are set out in ECAT, in which it is envisaged that the recovery and reflection periods will be withheld—

Photo of Stuart McDonald Stuart McDonald Shadow SNP Spokesperson (Home Affairs)

That wording is absolutely right. It is possible for the recovery period to be withheld, but the convention absolutely does not allow for a decision to be made on public order grounds. It is absolutely contrary to article 10 of the convention. Does the Minister have anything that can help him with that point?

Photo of Craig Whittaker Craig Whittaker Assistant Whip, The Lord Commissioner of HM Treasury

As I have already explained, such decisions will be made on a case-by-case basis. Regardless of whether they are children or vulnerable people, it is important that all aspects of the individual’s case are taken into account, such as whether they have been exploited and to what extent.

Photo of Stuart McDonald Stuart McDonald Shadow SNP Spokesperson (Home Affairs)

I do not want to make life difficult for the Minister, because I know he is in a very difficult situation, but the point is that it will not happen on a case-by-case basis, because decisions will not be made at all. As a result of the clause, people will just be excluded altogether from having a decision made about them. The point is that there is no case-by-case basis. It is an absolute blanket, and huge swathes of people will just not have a decision made about them, with no assessment made of whether they might be a victim of trafficking.

Photo of Craig Whittaker Craig Whittaker Assistant Whip, The Lord Commissioner of HM Treasury

I thank the hon. Member for his further intervention. I will take some advice on the technicalities in what he says, but that is not my understanding of what the clause says. I have already said that the decision to withhold recovery periods on public order grounds will be made on a case-by-case basis. That will balance the need to safeguard exploited individuals against public protection concerns and allow the Secretary of State to withhold the protections of the national referral mechanism, where the particular circumstances of an individual mean it is appropriate to do so.

Photo of Neil Coyle Neil Coyle Labour, Bermondsey and Old Southwark 10:30 am, 2nd November 2021

In light of the fact that the Minister is asking for the amendment to be withdrawn and given his understanding that decisions will be made on a case-by-case basis, can the Minister tell us if the guidance that goes with the legislation will set out the exemptions and the process by which cases will be decided on an individual basis, and if there will not be the blanket exemption that is the Opposition’s understanding?

Photo of Craig Whittaker Craig Whittaker Assistant Whip, The Lord Commissioner of HM Treasury

Of course we will fully assess the issues in policy guidance. The hon. Member is exactly right that it will be set out in policy guidance, to ensure that due account is taken of the circumstances, so that any permitted actions, including prosecutions, are proportionate and in the public interest. It is right that the Bill seeks to target ruthless criminal gangs who put lives at risk by smuggling people across the channel.

The changes are not intended to deter people from seeking help from the authorities when they are being exploited and abused. However, it is right that we should be able to withhold protections from serious criminals and people who pose a national security threat to the United Kingdom. Indeed, ECAT envisages that the recovery period should be withheld in such cases, and it does not specify an age limit either, in answer to the question asked by the hon. Member for Halifax. It is important that the UK maintains this scope, as set out in ECAT. I hope in light of this explanation, hon. Members will be content to withdraw the amendment.

Photo of Holly Lynch Holly Lynch Shadow Minister (Home Office)

I am grateful to the Minister for his response. As we have heard from the interventions made by hon. Members, the case studies before us mean that we have grave concerns about clause 51. The assurances that the Minister has sought to make do not overcome some of the barriers that clause 51 will put in place.

I look forward to hearing more detail about the Children’s Society projects that the Government are funding and the Look Closer campaign, which I very much welcome, but, as things currently stand, this is much more of a blanket exemption than the Minister has tried to suggest. The very broad public order definitions in the Bill go beyond the intention that he has tried to explain, so once again I am concerned that children will be particularly vulnerable to the negative impacts of clause 51 if unamended, so I am minded to press amendment 164 to a division.

Question put, That the amendment be made.

Division number 50 Nationality and Borders Bill — Clause 51 - Identified potential victims etc: disqualification from protection

Aye: 7 MPs

No: 9 MPs

Ayes: A-Z by last name

Nos: A-Z by last name

The Committee divided: Ayes 7, Noes 9.

Question accordingly negatived.

Question put, That the clause stand part of the Bill.

Division number 51 Nationality and Borders Bill — Clause 51 - Identified potential victims etc: disqualification from protection

Aye: 9 MPs

No: 7 MPs

Ayes: A-Z by last name

Nos: A-Z by last name

The Committee divided: Ayes 9, Noes 7.

Question accordingly agreed to.

Clause 51 ordered to stand part of the Bill.